For as long as I’ve been an employment lawyer, “unfair dismissal” has been the classic employment law claim. Section 94(1) of the Employment Rights Act 1996 says:

“An employee has the right not to be unfairly dismissed by his employer.”

It is rare to see a statute be so direct, and at first sight it looks like the right is as simple as it sounds, with the question simply being: was the dismissal unfair?

Anyone with any experience of employment law knows that it isn’t that straightforward. For instance, in cases where there is a dismissal for misconduct, a combination of the Burchell case and the so-called “range of reasonable responses” test can mean that a dismissal is fair even though the employee isn’t actually guilty of the misconduct, which probably doesn’t seem that fair to the employee.

A prime example of that comes in the case of Bryant v Sage Care Homes, where the Employment Appeal Tribunal went so far as to say that it was not up to the employment tribunal to decide what was or was not fair. In that case, a nurse with an impeccable record was dismissed after she had asked an unqualified care assistant to administer some medication to a patient. The care assistant gave the medication to the wrong patient, with no ill-effects, but in breach of various guidelines the nurse did not record this “drug error”. The nurse was dismissed for gross misconduct.

“When [the Claimant’s advocate], began his submissions at the original hearing he submitted that … he was on the Claimant’s behalf, “looking for fairness”. It is important for us to make it clear that it is not our task, as an Appellate court, to decide what was or was not fair. Nor was it the Employment Tribunal’s task so to decide. The Employment Tribunal’s task, on the issue of the reasonableness of the dismissal, once a genuine belief in misconduct and a reasonable investigation had been proved, was to decide whether the dismissal of the Claimant fell within the band or range of reasonable responses and not whether it was fair. There are many misconduct cases, they are heard regularly by Tribunals, in which the Tribunal decides that an employee has been treated harshly and even that the members of the Tribunal would not, if it had been left to them, have regarded it as fair to dismiss; but they conclude that the dismissal fell within the range of reasonable responses open to the employers in the situation before them; and that conclusion embodies no arguable error of law.”

So there it is – striking confirmation that it is not up to the tribunal in an unfair dismissal claim to decide whether or not the dismissal is “fair”.